Before Swygert, Chief Circuit Judge, and Parsons and Marovitz,
District Judges.

The opinion of the court was delivered by: Swygert, Chief Judge.

MEMORANDUM OPINION

Plaintiffs, Chicago and North Western Railway Company, Chicago,
Milwaukee, St. Paul and Pacific Railroad Company, Chicago, Rock
Island and Pacific Railroad Company and Illinois Central Railroad
Company bring this action to set aside an order of the Interstate
Commerce Commission. The Commission's order granted authority to
Walter Poole, doing business as Poole Truck Line of Evergreen,
Alabama, to operate as a common carrier over irregular routes
carrying traffic composed of tractors and related agricultural
machinery and implements from John Deere Company plant sites
located at Waterloo, Dubuque, and Des Moines, Iowa, Horicon,
Wisconsin, and Moline, Illinois, to points in Alabama and in
Georgia on and south of U.S. Highway 280. Motor carriers, Ringle
Express and Home Transportation Company, have intervened as
plaintiffs and Walter Poole has intervened as a defendant. We
hold that the ICC's action was correct and refuse to set aside
its order granting a certificate of public convenience and
necessity to Walter Poole to operate as a common carrier over the
routes in question.

Poole's application, filed on November 27, 1964, was designed
to permit Poole to institute a direct single-line operation to
replace the circuitous interline arrangement with Cooper Transfer
under which the involved traffic had previously been moving. At
the time the application was filed, Poole held authority to
transport Deere products from the Deere origin points to Mobile
and Monroe Counties, Alabama. Traffic interchanged at points in
these counties was transported under the authority of Cooper to
the points in Alabama and Georgia. Cooper, who no longer wished
to participate in this service, testified on behalf of Poole at
the application hearing. Poole's application was also supported
by twenty-three Deere dealers in Alabama and the areas of Georgia
covered by the application. John Deere Company did not support
Poole's application. Poole's application was opposed by various
railroads including plaintiff railroads and by the intervening
plaintiff motor carriers.

Three issues are presented for decision: whether the Commission
may reconsider and reverse a prior decision by an Appellate
Division which is administratively final; whether the Commission
erred as a matter of law in failing to explain why the prior
decision was incorrect and to disclose by adequate findings the
basis for its reversal; and whether the Commission's decision
granting the certificate is supported by substantial evidence.

Plaintiffs attempt to distinguish the instant case by arguing
that previous cases have permitted the Commission's jurisdiction
to continue only where the Commission has decided to grant
authority and where jurisdiction is retained "to shape the form
and content of the certificate in light of the applicable
statutory directions." In such cases the affirmative step of
delivery of the certificate to the applicant estops the
Commission from reconsidering its action. Watson Bros.
Transportation Co. v. United States, 132 F. Supp. 905 (D.C.Neb.),
aff'd per curiam, 350 U.S. 927, 76 S.Ct. 302, 100 L.Ed. 810
(1955). Plaintiffs argue by analogy that the decision to deny an
application should be treated in the same way as the affirmative
act of delivery of the certificate to the applicant.

Plaintiffs' position in unsupported by case law or by sound
policy. In Resort Bus Lines, Inc. v. ICC, 264 F. Supp. 742
(S.D.N.Y. 1967), the examiner recommended the grant of a
certificate, the Review Board reversed the examiner and denied
the application and this denial was affirmed on petition for
reconsideration [appeal] by an Appellate Division. On petition
for reconsideration by the applicant the Appellate Division
reopened on the existing record and granted the application. In
the Resort case, which, in all relevant respects, is identical to
the instant case, the court held that the power of the Appellate
Division to reconsider its own action extends "at least prior to
the time that an actual certificate of convenience and necessity
has been issued." The rationale for its decision, which is
equally applicable here, was stated by the court as follows:

Moreover, it is in the best interests of judicial
economy and agency responsibility to allow the
Appellate Division to reconsider its orders, rather
than to compel the losing party to seek immediate
review in the courts. Resort Bus Lines, Inc. v. ICC,
264 F. Supp. 742, 745 (1967).

The position of the court in the Resort case has also been
followed by the Commission in Eazor Express, Inc.-Purchase-Fleet
Highway Freight Lines, Inc., 101 M.C.C. 719 (1967).

The plaintiffs, relying upon Transamerican Freight Lines, Inc.
v. United States, 258 F. Supp. 910 (D.C.Del. 1966), argue that,
regardless of the continuing jurisdiction theory, the Commission
is without statutory authority to reconsider the action of one of
its Appellate Divisions. Reliance upon the Transamerican case is
misplaced. The interpretation of the provisions of the Interstate
Commerce Act offered by the court in Transamerican was expressed
sua sponte and was totally unnecessary to the holding of the
case. The Commission has rejected the court's obiter dictum,
stating that, although the statute and rules limit the right of
a party to seek reconsideration by the Commission, they in no way
limit the power of the Commission to reconsider on its own
motion. Eazor Express, Inc.-Purchase-Fleet Highway Freight Lines,
Inc., 101 M.C.C. 719
(1967). The Commission explained its reasoning as follows:

We hold, therefore, that the Commission was empowered to
reconsider and set aside the Appellate Division's order denying
Poole's application. Although the apparently unlimited power
given to the Commission to reconsider its orders may be limited
in cases where the objecting party demonstrates detrimental
reliance or the passage of a long period of time, cf. Upjohn
Company v. Pennsylvania R.R., 381 F.2d 4 (6th Cir. 1967);
Atchison, Topeka & Santa Fe Ry. Co. v. United States, 231 F. Supp. 422
(N.D.Ill. 1964); Watson Bros. Transportation Co. v. United
States, 132 F. Supp. 905 (D.C.Neb.), aff'd per curiam,
350 U.S. 927, 76 S.Ct. 302, 100 L.Ed. 810 (1955), there is nothing in the
record to indicate that the plaintiffs in the instant case were
prejudiced by the Commission's reopening of Poole's
application.*fn6

II

The plaintiffs argue that the Commission is required to give
reasons for reconsidering and reversing the Appellate Division's
order denying Poole's application. Reliance is placed upon
section 8(b) of the Administrative Procedure Act which provides
that decisions shall include "findings and conclusions, as well
as the reasons or basis therefor, upon all material issues of
fact, law or discretion presented on the record." We have found
no case holding that the Commission is required to give an
apologia for its previous error in addition to making the
required findings and conclusions along with accompanying
reasons. The question is not why the Commission changed its mind
but whether its decision is supported by adequate findings and
conclusions.

We hold that the Commission's decision granting Poole's
application is supported by substantial evidence and refuse to
set aside its decision to grant a certificate of public
convenience and necessity. In reviewing that decision we
recognize the great deference afforded to Commission
determinations of public convenience and necessity. In Midwest
Emery Freight System, Inc. v. United States, 293 F. Supp. 403, 405
(1968), this court explained its limited function in this respect
as follows:

Our scope of review of that order is limited to
determining only whether the findings made by the
Commission are supported by substantial evidence on
the entire record and whether its conclusion as to
public convenience and necessity has a rational basis
in the facts found. Administrative Procedure Act, 5
U.S.C.A. § 1009. We are mindful that the criteria by
which the Commission makes its determination of
public convenience and necessity are not subject to
review. No delineation of factors to support such a
determination has been expressed in the statute. 49
U.S.C.A. § 307. Congress has entrusted the Commission
with a "wide range of discretional authority" to draw
that conclusion from "the infinite variety of
circumstances which may occur in specific
instances."

With this standard in mind we proceed to examine the plaintiffs'
specific allegations of insufficiency of the evidence supporting
the Commission's findings.

The plaintiffs argue that the Commission makes two conclusions
which are necessary to a finding of public convenience and
necessity and which are completely unsupported by the evidence.
These conclusions are: (1) "that there is a need for continuation
of the service proposed, since discontinuance of the Poole-Cooper
interchange would leave shippers without adequate motor carrier
service;" and (2) "that the existing carriers will not be
affected adversely." We hold that substantial evidence supported
both of these conclusions.

The conclusion that existing services were inadequate and that
authority for Poole to operate as a common carrier is clearly
supported by the record. Contrary to the assertion of plaintiffs,
the Commission could reasonably find that Deere dealers could not
maintain sufficient inventory of Deere machinery and implements.
To satisfy their customers, these dealers needed expedited
service in some situations. Although the Commission may have
overestimated the actual delivery time by rail (ten days), it is,
nevertheless, reasonable to conclude that rail service was
inadequate to provide the fast, dependable service required.
Moreover, railroads were unable to serve some of the involved
dealers because unloading facilities were not located near the
dealer's place of business. Thus motor carriage was needed and
rail service was inadequate. Home could not provide this service
because it lacked authority from the Commission to carry much of
the traffic. Ringle possessed adequate authority but many dealers
were unfamiliar with Ringle's service. Some dealers who had
experience with Ringle's service characterized it as slow and not
as satisfactory as that provided by Poole. Although the
inadequacy of Ringle's service was not as clearly demonstrated as
in the case of the other plaintiffs, we think substantial
evidence supports the Commission's finding.

"This Commission believes that the limitation in the
statute and the rules issued pursuant thereto is a
limitation upon the right of a party to seek
reconsideration but in no way runs to the power of
the Commission to reconsider. The right of an
administrative body to reconsider at any time is
inherent in the power to decide and is a necessary
procedure in order to permit an administrative agency
to carry out properly its functions under the
enabling statutes. If we were precluded from
correcting the error that, as is hereinafter shown,
we find was promulgated in the prior report, justice
would be thwarted and would only result in imposing a
totally unnecessary burden on a reviewing court to
remand the proceeding to us for reconsideration.
Despite the desirability of finality, the public
interest demands that the right result be reached.
Cf. Erie R. Co. vs. United States, 64 F. Supp. 162,
1963 (1945); Shein vs. United States, 102 F. Supp. 320,
323, affirmed 343 U.S. 944 [72 S.Ct. 1043, 96
L.Ed. 1349]." 101 M.C.C. at 720.

The Commission suggested that there is a difference between
administrative finality for the purpose of judicial review and
with respect to the jurisdiction of the Commission over its own
orders.

In Resort, a Review Board reversed an examiner's recommendation
of a grant and denied the application, which denial was affirmed
on petition for reconsideration by Appellate Division 1.
Following another petition for reconsideration by the applicant,
Appellate Division 1 reopened the proceeding on the existing
record, reversed itself and granted the application. See Mountain
View Coach Lines, Inc., Extension — Poughkeepsie, 100 M.C.C. 24,
25 (1965). In federal court, plaintiff Resort contended that the
Appellate Division lacked jurisdiction to reconsider and reverse
its original decision and order. The court said:

"* * * While it is true, as Resort contends, that no
section of the Interstate Commerce Act (Act) states,
in haec verba, that an Appellate Division may
reconsider its own actions, we believe that it has
the power to do so, at least prior to the time that
an actual certificate of convenience and necessity
has been issued."

Both Eazor and Resort are factually distinguishable from the
instant case. While in Eazor and the instant case the Commission,
on its own motion, reopened the proceedings on the present
record, in Eazor a petition, albeit for another purpose, was
before the Commission, while here the Commission had apparently
completed its work six months prior to reopening the case. Unlike
Resort, this is not a situation where an Appellate Division
reconsidered one of its own orders upon receipt of a petition
from one of the parties. See 264 F. Supp. at 745 n. 5. Rather, the
full Commission, on its own motion, reviewed a decision of one of
its appellate divisions.

Both Resort and Eazor relied on Alamo Express, Inc. v. United
States, 239 F. Supp. 694 (W.D.Texas 1965), aff'd per curiam
382 U.S. 19, 86 S.Ct. 83, 15 L.Ed.2d 14 (1965). Here, again, the
Commission reversed a prior order and granted an application
which had first been denied.

"The Interstate Commerce Act itself gives the
Commission a continuing jurisdiction over its orders,
thereby allowing it to modify and even rescind a
great number of them at any time, Sections 17(6),
17(7) and 221(b) of the Interstate Commerce Act.
There appears to be no such cut-off date, after which
the Commission could not rescind or modify its
orders, as is found in the National Labor Relations
Act, 29 U.S.C. § 160(e) which prevents such
action by the agency after the filing of the
administrative transcript with the reviewing
court * * *."

239 F. Supp. at 697-698.

Yet, this case is also factually distinguishable for the
Commission had specifically delayed the effective dates of its
original orders and allowed for the filing of petitions for
reconsideration. Id. at 698. See Tri-B Corporation, Shelby, Iowa
v. ICC, 253 F. Supp. 715 (1966). Baldwin v. Scott County Milling
Co., 307 U.S. 478, 484, 59 S.Ct. 943, 83 L.Ed. 1409 (1939) and
Sprague v. Woll, 122 F.2d 128, 130-131 (7th Cir. 1941) can be
distinguished similarly as cases in which proceedings were
reopened on the petition of a party or on the basis of petitions
in similar proceedings.

In sum, we think the logic of Transamerican compels a decision
that the Commission has no power to review a decision of an
Appellate Division. Moreover, even if one accepts a judicial
amendment to Section 17(7) to allow such review or if one
construes the administrative action in this matter to be a
reversal of the Review Board, and not an appellate division, a
further problem remains. While a number of cases deal with the
nature of continuing administrative jurisdiction, we find no
previous case has squarely presented the question of whether the
Commission, on its own motion and without any related or similar
matter before it, may reopen a proceeding. The statutes and the
rules, we think, deal exclusively with the right of a party to
petition the Commission, and do not deal specifically with the
right or prerogative of the Commission to act on its own
volition.

"Re-examination and reconsideration are among the
normal processes of intelligent living. Admittedly no
warranty of correctness or fitness attaches to a
decision or an action simply because it is a thing of
the past. Every-day experience teaches the contrary:
while the choice first made may well remain the
course ultimately followed, often enough it is found
on further considereration to require revision. On
the other hand, constant re-examination and endless
vacillation may become ludicrous, self-defeating, and
ever oppressive. Whether for better or for worse so
far as the merits of the chosen course are concerned,
a point may be reached at which the die needs to be
cast with some `finality.' An opposition may thus
develop between the right result and the final one."

Some years ago, a recognized authority in the field of
administrative law, Professor Kenneth C. Davis, summarized the
questions to be resolved by an agency or the courts when faced
with this dilemma:

"When statutes are silent and legislative intent
unclear, agencies and reviewing courts must work out
the practices and the limits on reopening. The
consideration affecting reopening to take account of
new developments or of new evidence of old
developments often differ from those affecting the
correction of mistakes or shifts in judgment about
law or policy. Usually the search for a basic
principle to guide reopening is futile; the results
usually must reflect the needs that are unique to
each administrative task. Factors to be weighed are
the advantages of repose, the desire for stability,
the importance of administrative freedom to
reformulate policy, the extent of party reliance upon
the first decision, the degree of care or haste in
making the earlier decision, the general equities of
each problem."

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